IN THE CASE OF:	  

		BOARD DATE:	    24 June 2010

		DOCKET NUMBER:  AR20090020752 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was told when he was discharged that after 1 year he could request an upgrade of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  On 29 December 1980, the applicant enlisted in the Regular Army for 3 years, in the pay grade of E-1.

3.  The applicant's military record contains a total of seven DA Forms 4856-R (General Counseling Form) dated between 4 May 1981 and 3 July 1981.  During his counseling

* he expressed no desire to complete his training
* repeatedly stated he wanted to get out of the Army as soon as possible
* he stated he had other personal problems
* he stated he was unable to complete the administrative specialist course and to get the military occupational specialty (MOS) he wanted

4.  Nonjudicial punishment (NJP) was imposed against him on 6 May 1981 for being absent with leave (AWOL) from 1 May 1981 until 4 May 1981.  His punishment consisted of a forfeiture of pay in the amount of $115.00.

5.  On 10 July 1981, NJP was imposed against him for being AWOL from 7 June 1981 until 30 June 1981. The applicant went AWOL on 7 June 1981 and he remained absent in desertion until he surrendered to military authorities on 30 June 1981.  His punishment consisted of a forfeiture of $250.00 pay and restriction for 30 days.

6.  On 10 July 1981, the applicant was notified he was being recommended for discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-1, under the Expeditious Discharge Program (EDP).  The commander cited the applicant's lack of self-discipline and motivation, inability to complete advanced individual training, failure of the administrative specialist course, failure to meet standards in military occupational specialty (MOS) 82C (Field Artillery Surveyor), and his two AWOL offenses as the bases for the recommended discharge.

7.  The applicant acknowledged receipt of the notification on 13 July 1981 and he elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on 5 August 1981.  Accordingly, on 13 August 1981, he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31h(2), under the EDP, due to failure to maintain acceptable standards for retention.  He completed 7 months and 15 days of net active service this period and he was issued a General Discharge Certificate.


9.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provided that members who had completed at least 6 months but less than
36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, considering all the fact of his case, his service was not sufficiently meritorious to warrant an honorable discharge.

2.  His records show that he had no desire to Soldier and that he had NJP imposed against him twice for being AWOL.  Considering the nature of his offenses the type of discharge he received appropriately reflects his overall record of service.

3.  The Army has never had a provision for upgrading discharges based solely on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The applicant was discharged in accordance with the applicable regulation and there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X___  ___X____    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090020752



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ABCMR Record of Proceedings (cont)                                         AR20090020752



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